I THE SUPREME COURT OF THE STATE OF MISSISSIPPI MI E SAFETY APPLIA CES COMPA Y. v. o CA RESPO SE BRIEF OF APPELLEE HUEY P.

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1 E-Filed Document Aug :25: CA SCT Pages: 39 I THE SUPREME COURT OF THE STATE OF MISSISSIPPI MI E SAFETY APPLIA CES COMPA Y APPELLA T v. o CA HUEY P. HOLMES APPELLEE RESPO SE BRIEF OF APPELLEE HUEY P. HOLMES ON APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY NO ORAL ARGUME T OT REQUESTED David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: F: E: dnmlaw@gmail.com W: McCartyAppeals.com R. Allen Smith, Jr. THE SMITH LAW FIRM, PLLC 661 Towne Center Blvd., Suite B Ridgeland, Miss Timothy W. Porter Patrick C. Malouf John T. Givens PORTER & MALOUF, P.A. P.O. Box Jackson, Miss

2 I THE SUPREME COURT OF THE STATE OF MISSISSIPPI MI E SAFETY APPLIA CES COMPA Y APPELLA T v. o CA HUEY P. HOLMES APPELLEE CERTIFICATE OF I TERESTED PERSO S Pursuant to Miss. R. App. P. 28(a)(1), the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Mine Safety Appliances Company, Appellant 2. The Honorable Lamar Pickard, Jefferson County Circuit Court 3. Charles R. Wilbanks, Jr., Matthew R. Dowd, Joseph A. Sclafani, G. Austin Stewart, of Brunini, Grantham, Grower & Hewes, PLLC, Counsel for the Appellant 4. Huey P. Holmes, Appellee 5. R. Allen Smith, Jr., of the Smith Law Firm, PLLC, and Timothy W. Porter, Patrick C. Malouf, and John T. Givens, of Porter & Malouf, P.A., and David Neil McCarty, of the David Neil McCarty Law Firm, PLLC, Counsel for the Appellee So CERTIFIED, this the 11th day of August, Respectfully submitted, s/ David eil McCarty David Neil McCarty Miss. Bar No Attorney for Appellees i

3 TABLE OF CO TE TS Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii Statement of the Issues... 1 Statement of the Case... 1 Statement Regarding Oral Argument... 2 Relevant Facts... 2 Relevant Procedural History Summary of the Argument Standards of Review Argument Issue I Issue II Conclusion Certificate of Service ii

4 TABLE OF AUTHORITIES Cases American at. Ins. Co. v. Hogue, 749 So.2d 1254, 1263 (Miss. Ct. App. 2000) Canadian at./illinois Cent. R. Co. v. Smith, 926 So.2d 839 (Miss. 2006)... 11, 19, 22 Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 162 (Miss. 2011) Culbreath v. Johnson, 427 So.2d 705, 706 (Miss. 1983)... 30, 31 Deposit Guar. at. Bank v. Roberts, 483 So.2d 348 (Miss. 1986) East Miss. State Hosp. v. Adams, 947 So.2d 887 (Miss. 2007)... 15, 17 Empire Abrasive Equip. Corp. v. Morgan, 87 So. 3d 455, 464 (Miss. 2012) Fleming v. Floyd, 969 So.2d 868, 878 (Miss. 2007) Gray v. Mariner Health Cent., Inc., 2006 WL (N.D.Miss. Sept. 3, 2006) Hales v. State, 933 So.2d 962, 968 (Miss. 2006) Holmes v. Coast Transit Authority, 815 So.2d 1183 (Miss. 2002) Jackson v. Daley, 739 So.2d 1031, 1039 (Miss. 1999) Kinsey v. Pangborn Corp., 78 So. 3d 301, 308 (Miss. 2011) Knight v. Knight, 85 So.3d 832, 836 (Miss. 2012) Marshall v. Kansas City Southern Railways Co., 7 So.3d 210, (Miss. 2009) McClain v. State, 625 So.2d 774, 778 (Miss. 1993) McFarland v. Entergy Mississippi, Inc., 919 So.2d 894, 908 (Miss. 2005) Mobile, J. & K.C.R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 143 (Miss. 1908) MS Credit Center, Inc. v. Horton, 926 So.2d 167 (Miss. 2006)... 15, 16, 17 MSU v. PETA, 992 So.2d 595, 607 (Miss. 2008) Owens v. Mai, 891 So.2d 220 (Miss. 2005) Patterson v. Liberty Associates, L.P., 910 So.2d 1014, 1020 (Miss. 2004) Qualcomm Inc. v. American Wireless License Group, LLC, 980 So.2d 261, 274 (Miss. 2007).. 29 Reeves Royalty Co., Ltd. v. A B Pump Truck Service, 513 So.2d 595, 599 (Miss. 1987) Robinson Property Group, L.P. v. Mitchell, 7 So. 3d 240, 245 (Miss. 2009)... 23, 27 Robinson Property Group, Ltd. Partnership v. McCalman, 51 So.3d 946, 948 (Miss. 2011) Russell v. Performance Toyota, Inc., 826 So.2d 719 (Miss. 2002) Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997)... 13, 14, 23 Stewart v. Coleman & Co., 120 Miss. 28, 81 So. 653, 655 (Miss. 1919) Tellus Operating Group, LLC v. Texas Petroleum Inv. Co., 105 So.3d 274, 278 (Miss. 2012) Thompson v. Dung Thi Hoang guyen, 86 So.3d 232, 235 (Miss. 2012) Whitten v. Whitten, 956 So.2d 1093 (Miss. Ct. App. 2007) Williams v. Bennett, 921 So. 2d 1269, 1274 (Miss. 2006) Other Sources G. Gaggini, Laches and Limitations, in 5 Ency. of Miss. Law 44:22 (J. Jackson & M. Miller eds. 2008) iii

5 Statement of the Issues The issues as restated by the Appellee pursuant to MRAP 28(b): I. The Statute of Limitations Has ot Run on Mr. Holmes Claims. II. The Jury s Verdict Was Reasonable and Based on Ample Evidence. Statement of the Case This case is about man who worked as a construction worker for several years. He used a jackhammer to tear down huge concrete highway structures. While jackhammering to destroy the concrete, he was in an extremely dusty environment. The concrete was full of sand, and when crushed by the jackhammer the man would breathe it in. Even though he wore a respirator mask meant to protect him from the dust, he breathed in so much dust that sometimes he would spit up black phlegm. Scientists have determined that when the sand was crushed like this, it was crushed into a fine dust that could be inhaled into the lungs. Given time, the inhalation could greatly weaken the lungs, resulting in an inevitably fatal disease called silicosis. After his years of breathing in the crushed sand while jackhammering, the man was diagnosed with silicosis. The man filed suit in a timely fashion against the makers of the respirator he used to keep him from breathing in the dust. At trial, the company s representative admitted the company knew as far back as 1951 that filters in respirators could fail in highly humid and moisture rich conditions, like Mississippi. An expert also testified that the respirator had five flaws which could make it fail. Others testified that the jackhammering would have definitely exposed the man to dangerous levels of potentially toxic dust. At trial, and after hearing how the respirator was so defective, the jury found in the man s favor. The company appealed. 1

6 Statement Regarding Oral Argument This case involves a simple statute of limitations question based on well-settled law, and whether a jury s verdict was based on the evidence presented at trial. It does not merit oral argument. Relevant Facts This case involves two separate threads of history knotted together. The first thread is that Mine Safety Appliances knew its respirator, the Dustfoe 66, could fail to protect users from deadly harm even before the product went into production. Wound tight with that thread is Huey Holmes, a construction worker from Fayette, who used MSA s product for years but who was later diagnosed with damage to his lungs the respirator was supposed to guard against. Importantly, the facts of this case are not contested, and to the extent there is any dispute, it was resolved by the factfinder and must be taken as conclusively determined. Exposure to Silica Can Destroy the Human Lung At trial, Dr. Vernon Rose testified as an expert on behalf of Mr. Holmes. 35:142. Dr. Rose is an industrial hygienist, a field of science which involves recognizing, evaluating, and controlling hazards in the workplace. 35:145. A component of that field is limiting the exposure of workers to dust and gas and other dangers. 35:145. Dr. Rose described one harm in the workplace as respirable silica essentially crushed sand. 36:152. It is too small to be seen, the expert explained, [b]ut scientific studies have shown in jackhammering, sandblasting, foundry work and so forth, that the respirable particles are there, they ll get in the lungs. 36: The particles are so tiny they are smaller than a human hair, and can be carried in the air. 36:153. 2

7 The danger of these tiny particles is immense. Dr. Cameron Huxford also testified for Mr. Holmes at trial. 36:237. Dr. Huxford is a medical doctor and a pulmonologist, which means he focuses his area of practice on the lungs. 36: He explained that silicosis was a lung disease caused by breathing in the dust from silica. 36: Even though silica is an extremely common element, the tiny respirable particles are sharp and they get in the lungs and they cut and they -- the lung is a very fragile organ, and so those sand particles, they cut and then those cut forms scars, and then over time if you're exposed to enough of it, it can scar your lungs to where you're -- you're sick from it and you have shortness of breath and cough and various things like that. 36:243. Basically, the disease prevents people who have it from being able to breathe. 36: There is no cure for silicosis. 36:244. It can also raise the risk of lung cancer. 36:244. Dr. Huxford also explained that silicosis was a dose-response disease. 36:248. What that means is the more you re exposed to it, the higher the likelihood you'll get the disease. 36:248. Each dose contributes to a higher risk of developing silicosis. 36:248. Functioning Respirators Can Guard Against Silica Exposure Because of tremendous danger of silica, Dr. Rose explained that there were devices meant to protect against it respirators. 35:149. The expert had ample experience with respirators. 35:149. Dr. Rose described respirators as the last line of defense for a worker in a hazardous workplace. 35:149. A respirator is like a bulletproof vest on a police officer. 35:149. The point of the device is to protect the worker from the harm. One respirator was called the Dustfoe 66, and it was made by a company named Mine Safety Appliances. R.E. 18, P-34 at 2. 1 For purposes of trial, the manufacturer designated as its corporate representative Charles Seibel. R.E. 17, P-34 at 1. Mr. Seibel is MSA s manager of 1 The Exhibits to the trial are located in a separately bound volume. 3

8 product safety. R.E. 17, P-34 at 1. He testified that MSA made the Dustfoe 66 from 1955 until R.E. 18, P-34 at 2. Mr. Seibel agreed that the Dustfoe 66 used a similar design throughout its 33 year life. R.E. 18, P-34 at 2. From a set of instructions from the early days of the product, it looked like this: R.E. 39 (excerpted); D-11. The Dustfoe 66 only came in one size. R.E. 18, P-34 at 2. MSA s corporate representative testified that the Dustfoe 66 was designed to shield against the deadly respirable silica. R.E. 21, P-34 at 5. Mr. Seibel also agreed with Dr. Rose that respiratory protection is the last line of defense against airborne hazards like silica. R.E. 19, P- 34 at 3. 4

9 MSA Admits Its Dustfoe 66 Does ot Protect Against Silica During his testimony, MSA s corporate representative made several admissions. Even though the Dustfoe 66 was supposed to guard against silica, the company representative admitted there were foreseeable situations where the respirator could expose the user to respirable silica. R.E. 26, P-34 at 10. Because despite the fact that it was supposed to be a bulletproof vest for the lungs, the Dustfoe 66 was actually designed to leak air. R.E , P-34 at 2-3. Therefore via its inherent design, the respirator could allow in dangerous particles. MSA also admitted it knew about studies that the filter in the Dustfoe 66 would degrade in high humidity. R.E. 29, P-34 at 13. Despite knowing that humidity could damage the filter, the company continued to sell it in Mississippi, and it did not provide a field notice or recall notice to users. R.E ; P-34 at Indeed, MSA s own research department had drafted and circulated a memorandum in 1951 four years before the Dustfoe 66 went onto the marketplace that moisture could result in a lowered filtering efficiency. R.E , P-5. Despite this admitted flaw in the respirator, MSA never provided users with any instructions at all on how to deal with the weakened respirator in high humidity. R.E. 30, P-34 at 14. The company also never put a warning on the respirator to inform users to be careful with it in high humidity. 37:365. The company even conceded that just storing the filter in Mississippi might damage its effectiveness, testifying that there would be some degradation I would think. R.E. 31, P-34 at 15. MSA admitted there would be no way to visually check if the filter was damaged by humidity. R.E. 32, 34, P-34 at 16, 18. Nor was there any way a user of the Dustfoe 66 would know if the filter was weakened. R.E. 34, P-34 at 18. Even despite MSA s knowledge that the respirator leaked, and that its filters would degrade in humidity, in the 33 years it was on the market MSA never issued a field notice or recall for the Dustfoe 66. R.E , P-34 at

10 The Five Fatal Flaws of the Dustfoe 66 In addition to MSA s admission that the Dustfoe 66 leaked and could fail under humid conditions, expert testimony at the trial set out a series of other potentially deadly hazards. Industrial hygienist Darrell Bevis also testified for Mr. Holmes. 36:174. Mr. Bevis served as the manager of respiratory protection at Los Alamos National Laboratory. 36:177. The expert had worked in respiratory protection his whole career, with 52 years in the field. 36:179. This included developing programs for the federal government regarding respiratory health. 36:180. Mr. Bevis testified that the Dustfoe 66 was definitely defective. 36:189. He identified five separate flaws in the design of the respirator. 36:189. First, that it was easy to damage, because the mask could be bent or distorted, causing the user to inhale tainted air. 36:190. Mr. Bevis testified that MSA was aware of this defect. 36:190. Second, the Dustfoe 66 had a faulty exhalation valve, of which MSA was also aware. 36: Third, as admitted by MSA s own corporate representative Charles Seibel, the filter on the Dustfoe 66 could fail due to humidity. 36:193. MSA was aware of this before the respirator was even put into production, as its own internal documents from 1951 showed. 36:193, 196, R.E , P-5. Fourth, the inherent design of the Dustfoe 66 prevented the user from doing a face seal check to make sure the respirator was actually on their face correctly and therefore protecting them from tainted air. 36: Fifth, the suspension straps on the respirator prevented it from sitting on the face in a safe manner. 36: Based on the five flaws, Mr. Bevis testified that the respirator was defectively designed. 36:203. He also noted that he took the Dustfoe 66 out of use at Los Alamos and would not allow people to use it there. 36:202. Mr. Bevis believed that MSA should have informed users to not 6

11 use the respirator around respirable silica, instead of actually recommending that the Dustfoe 66 could be used in that situation. 36:203. Mr. Bevis also explained that in 1963 he was part of a publication called the Respiratory Protective Devices Manual. 36:219, R.E. 44, P-6. This bible of respirators was also coauthored by a MSA representative. 36:219-20, R.E , P-6 at vii, ix. The bible showed that in 1963 the entire industry was aware that high humidity... may dissipate the electrostatic charge from filter fibers. R.E. 49, P-6 at 39, 36: By 1973, or 18 years after the Dustfoe 66 went on the market, one person in the field of respiratory health noted that while the respirator was popular, in his opinion it has a history of major design and approval testing problems. R.E. 50, P-16, R.E. 20. A subsequent letter described that The Dustfoe 66 is decidedly defective in several respects.... R.E. 51, P-18, R.E A vast amount of testimony and documents at trial showed that the Dustfoe 66 respirator could fail to protect users. Huey Holmes Used the Dustfoe 66 in Silica-Rich Environments Against this backdrop of deadly silica and faulty devices comes Huey Holmes. At the time of trial, Mr. Holmes was :142. A resident of Jefferson County his whole life, Mr. Holmes only went through the first or second grade of school before leaving so he could work and support his family. 35: He worked for T.P. Groome Construction from 1958 until :115. As part of the job working for the construction company, Mr. Holmes would tear up old highway culverts in preparation to put in new ones. 35:116. The crew would use jackhammers to demolish the huge concrete structures, which could be forty to sixty feet wide. 35:116. The men would work five to six days a week, and sometimes even light fires at night so they could see to keep working. 35:121. 7

12 In ripping the old concrete to pieces, heavy amounts of dust would be kicked up. 35:116. When finished with work, Mr. Holmes said there would be Dust all over you. 35:119. Mr. Holmes testified that it d be so dusty you couldn t see in there. 35:117. He couldn t actually see to jackhammer All you do, he told the jury, was hold on to it. Then when you feel [the concrete] break, then you put it down. 35:117. It would take weeks to break down the massive concrete structures. 35:117. At trial, Mr. Holmes specifically identified the Dustfoe 66 as the respirator he wore while doing the jackhammer work. 35:117. The filter would clog up kind of regular when he wore it, and Mr. Holmes recalled how hot and humid it would be in the summertime when doing construction work. 35:118. Mr. Holmes recalled that the Dustfoe 66 leaked terribly. 35:120. Dust come inside of it, and come inside of you, too, because sometimes when I spit, it d be black. Spit up black spit. 35:120. Huey Holmes Has Silicosis As a Result of Exposure to Respirable Silica Mr. Holmes testified that he had shortness of breath, that it was hard to breathe, and sometimes spits up black phlegm. 35:122. His trouble breathing began five or six years before trial. 35:122. At trial, Dr. Huxford testified that Huey Holmes had the deadly disease of silicosis. 36:246. According to the lung specialist, there are four components of a silicosis diagnosis. 36:244. The four pieces were exposure to respirable silica, often shown through work history; latency, meaning that there was a sufficient time period to develop the disease; x-rays showing the damage; and last, that other causes were ruled out. 36: Dr. Huxford testified that Mr. Holmes met all four parts for a silicosis diagnosis. 36:246. 8

13 As to the amount of exposure, Dr. Huxford added that he was for sure Mr. Holmes had inhaled enough respirable silica to develop silicosis. 36:248. Mr. Holmes said he did it [jackhammering] multiple hours a day, several days a week for several weeks, so there was a continuous amount of exposure. 36:248. Since every dose of respirable silica increases the risk of the disease, every minute and hour of exposure raised Mr. Holmes risk of developing silicosis. 36:248. In addition to the breathing problems Mr. Holmes testified he was experiencing, Dr. Huxford had tested the level of oxygen in his blood, and noticed that it dropped dramatically when the former construction worker exerted himself even in the most minute fashion, like walking down a hallway. 36:251. Mr. Holmes breathing troubles were already so dire the physician noted he was pretty close to being a candidate to having an oxygen tank at his house. 36:257. Dr. Huxford was not alone in testifying that Mr. Holmes had endured immense levels of exposure to respirable silica. Dr. Rose also calculated to a reasonable degree of scientific certainty that Mr. Holmes was overexposed to respirable silica while jackhammering, since the concrete being destroyed contained sand. 36:151-52, 158. Indeed, Dr. Rose testified that some studies showed that Mr. Holmes could have encountered respirable silica in an amount thirty times what was safe. 36:154. The expert further stated that the Dustfoe 66 respirator did not protect Mr. Holmes from the silica he encountered while jackhammering. 36:153. The respirator would nowhere come close to adequate protection It would be overwhelmed completely. 36: In similar scenarios as suffered by Mr. Holmes, the expert observed that the exposures were extremely high. 36: Likewise, former Los Alamos respiratory protection specialist Darrell Bevis testified that Mr. Holmes was definitely exposed to respirable silica while jackhammering. 36:

14 While the amount of silica would vary upon the conditions, the expert had tested exposure while jackhammering and there is virtually always silica. 36: At Trial, MSA s Experts Agree The Dustfoe 66 Could Fail MSA put on a variety of experts to testify in its defense all of whom repeatedly agreed that the Dustfoe 66 was riddled with problems, and that Huey Holmes was repeatedly exposed to high levels of respirable silica. MSA s corporate representative Charles Seibel admitted in his testimony the company knew the filter in the Dustfoe 66 could fail in high humidity. R.E. 29, P- 34 at 13. Additionally, MSA called Dr. James Johnson as an industrial hygienist. 37:328, 330. While he argued for the company that the Dustfoe 66 was not defective, he admitted its filter was only useful temporarily, from days to weeks. 37:342, 352. Dr. Johnson also conceded on cross-examination that the filter storage for the Dustfoe 66 was not humidity proof, which could result in damage to the filter. 37:364. He also admitted there were no warnings that the respirator may be weakened in hot or humid locales like Mississippi. 37:365. MSA s Experts Testify That Huey Holmes Suffered High Exposure to Respirable Silica MSA also brought to trial another industrial hygienist, one Donald Marano. 37: When asked about Mr. Holmes jackhammering conditions, Mr. Marano conceded that Certainly it [the concrete] contained silica. 37:388. He also testified that sand is a major component of concrete. 37:389. He did not dispute Mr. Holmes characterization of his former job as very dusty. 37:392. Mr. Marano reiterated that the danger of silicosis rises with each dose, since each dose can contribute to the damage to the body. 37:397. Mr. Marano also agreed that Mr. Holmes suffered from multiple doses of respirable silica, although he protested that it was only during a six-year period. 37:397. Yet ultimately 10

15 MSA s expert Mr. Marano conceded If he [Huey Holmes] has silicosis, he would have had enough exposure to silica to cause the disease, yes. 37:399. MSA called a physician named Dr. Demondes Haynes to say that Mr. Holmes was not suffering from silicosis. 37:406,416. Yet Dr. Haynes admitted that Dr. Huxford who testified for Mr. Holmes that he was suffering from the deadly disease was a good doctor, and that doctors could disagree. 37:425. Dr. Haynes also testified that silicosis could be deadly, and that it was associated with cancer and an increased risk of lung cancer. 37:426. Dr. Haynes admitted that he was not there to discuss whether Mr. Holmes was exposed to respirable silica. 37:426. Critically, when asked if he thought six year of exposure to respirable silica was enough to develop silicosis, Dr. Haynes testified, That s enough to be at risk for the disease. 37:426. Relevant Procedural History Huey Holmes was provided a diagnosis that he had symptoms consistent with silicosis on December 16, :2321. At that point, the 3 year statute of limitations began to run on his claim. Ten days later, on December 26, 2002, he was named as a plaintiff in a mass action filed in Adams County. 16:2322, The company Mine Safety Appliances was named as a defendant. 16:2345, At the time Mr. Holmes case was filed, Mississippi courts allowed mass joinder of plaintiffs, but several years into the litigation the Supreme Court modified how such cases would proceed. In 2006, the Court ruled that the mass cases should be dismissed and refiled to proceed without misjoined parties, as a corrective device to obtain proper venue and single plaintiff cases. Canadian at./illinois Cent. R. Co. v. Smith, 926 So.2d 839, 845 (Miss. 2006). The court held that [t]his procedure should result in no prejudice to the severed plaintiffs.... Id. Pursuant to the ruling in Canadian ational, the Adams County trial court dismissed Mr. 11

16 Holmes 2002 case. R.E. 01, 14, 20: , 21: The order noted that the case was being dismissed without prejudice, and that Mr. Holmes was one of the Plaintiffs to be dismissed pursuant to Canadian ational. R.E. 01,14, 20:2997, 21:3010. The dismissal without prejudice was on April 7, R.E. 01, 20:2997. After that point, Mr. Holmes refiled his lawsuit in Jefferson County on May 16, :27. In its Answer to the Complaint, MSA claimed a whopping sixty-seven defenses to Mr. Holmes claims. 3: Among the constellation of arguments was that MSA pleads the applicable statutes of limitation as to Plaintiffs cause(s) of action.... 3:305. The company s Answer was docketed on September 14, :301. Almost three years later, on August 10, 2010, MSA first pursued its statute of limitations argument by joining in the arguments made by another defendant. 17:2477. It took MSA 1,061 days after claiming the statute of limitations applied to seek a ruling on that procedural point. During that time period, MSA substantially litigated the case. Indeed, long after the Answer was filed, MSA filed a Motion to Compel complaining that it had not received responses to its stunningly voluminous discovery. 14:1977. MSA had demanded Mr. Holmes answer 58 Interrogatories, many of which had multiple sub-parts. 14:1998. MSA had also sought Requests for Production on 72 separate points. 14:2005. Mr. Holmes proceeded to trial against MSA, and the jury ultimately found in his favor that the Dustfoe 66 failed to protect him. 33: The jury held MSA liable for 90% of Mr. Holmes damages, and his former employer, T.P. Groome Construction, 10% liable. 33:4824. The judgment against MSA was for $787, :4824. MSA appealed. Summary of the Argument There are two core reasons this case must be affirmed in all respects. 12

17 First, the statute of limitations has never run in this case. MSA waived its affirmative defense of statute of limitations by waiting almost three years to argue it, and in the meantime engaging in heavy litigation against Mr. Holmes. Under Supreme Court precedent, this means the company waived its defense. Furthermore, Mr. Holmes filed suit just days after his diagnosis of silicosis. Under likewise settled precedent, that timely filing although later dismissed without prejudice served to toll the statute of limitations, preserving Mr. Holmes claims. Second, the jury s verdict was reasonable, and based upon ample evidence presented at trial. Mr. Holmes had ample expert testimony at trial that he was exposed to respirable silica while jackhammering, and that his heavy exposure resulted in silicosis. There was also ample testimony that the Dustfoe 66 respirator made by MSA would fail to protect a user from silica because it was defectively designed. The company also admitted at trial it never warned users that the filter in the Dustfoe 66 could fail in high humidity situations, like Mississippi. The jury s verdict was reasonable based upon the vast information presented at trial through experts, testimony, and MSA s own admissions that Huey Holmes had suffered harm by using MSA s respirator. Standards of Review There are two standards of review in this case. For the majority of the issues in this appeal, there is an extremely deferential standard, as a jury resolved the facts and other contested issues. The standard of review for jury verdicts in this state is well established. Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997). Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, 13

18 no reasonable, hypothetical juror could have found as the jury found. Id. Our standard for review is de novo in passing on questions of law. Id. It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Robinson Property Group, Ltd. Partnership v. McCalman, 51 So.3d 946, 948 (Miss. 2011) (internal quotations and citations omitted). For the statute of limitations issue, the review is de novo. Questions of law, such as statutory interpretation, are subject to a de novo standard of review. Tellus Operating Group, LLC v. Texas Petroleum Inv. Co., 105 So.3d 274, 278 (Miss. 2012). Argument I. The Statute of Limitations Has ot Run on Mr. Holmes Claims. For two core reasons the statute of limitations was not breached in this case. First, the affirmative defense was completely waived by Mine Safety Appliances, as it waited 1,061 days to seek summary judgment after claiming the statute of limitations applied. During that time the company substantially participated in litigation. Under clear Mississippi precedent, this results in a complete waiver of the affirmative defense. Second, even if the defense of statute of limitations was not waived, clear Mississippi Supreme Court precedent holds that the limitations period was paused during the pendency of Mr. Holmes first case. The Supreme Court has made utterly clear that while a person has a lawsuit pending, the statute of limitations is not running. 14

19 A. MSA Waived the Defense of Statute of Limitations. Because MSA waited almost three years before pursuing its defense that the statute of limitations applied, and because the company engaged in significant litigation prior to asserting the defense, it was waived under Mississippi law. In Mississippi, [a] defendant s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver. MS Credit Center, Inc. v. Horton, 926 So.2d 167, 180 (Miss. 2006). 2 The Court has enumerated three factors to be considered: first, where there is a substantial and unreasonable delay in pursuing the right; second, when that delay is coupled with active participation in the litigation process; and last, prejudice to the party resisting [the motion to dismiss or arbitrate] is a factor to be considered. Id. at 180, 180 n. 7; see also Russell v. Performance Toyota, Inc., 826 So.2d 719, 724 (Miss. 2002) (internal citations and quotations omitted) ( to establish a waiver, the objector... must establish that a party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party ). When these three factors are present, the Court will not hesitate to find a waiver of the issue. Horton, 926 So.2d at 180; see also East Miss. State Hosp. v. Adams, 947 So.2d 887, 891 (Miss. 2007) (finding waiver when a defendant participated fully in discovery, filed and opposed various motions, and that participation took place for over two years ). There is a compelling reason such a result is warranted: the threat of waiver conserves judicial resources and the resources of the litigating parties. To do otherwise would be to encourage needless and duplicative litigation that stretched over years benefitting no one but 2 While Horton involved the waiver of an arbitration contract, the Court was careful to add that its holding today is not limited to assertion of the right to compel arbitration, but extended to other affirmative defenses as well. Horton, 926 So.2d at

20 the parties defending the litigation and those paid to defend it. In Horton, the defendants failed to pursue a right to arbitration for more than eight months while actively participating in the litigation process. Id. They provided no explanation for this delay. Id. The Horton Court found waiver, and that [a] defendant s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver. Id. at 180. The Supreme Court further defined pursuing the defense to mean more than merely asserting it in a pleading, but actively bringing the defense to the court s attention by motion and requesting a hearing. Id. at 181 n.9. The Court declined to say how long constituted an unacceptable delay, but noted that an eight month unjustified delay coupled with active litigation would constitute waiver as a matter of law. Id. 1. MSA Unreasonably Delayed Pursuing its Affirmative Defense. Because MSA unreasonably delayed their invocation of the defense of statute of limitation, waiver has attached. In Horton, the Court made clear that even an 8-month delay coupled with litigation would result in waiver as a matter of law. Id. at 181(emphasis added). In this case, it is uncontested that MSA invoked the defense of statute of limitations in an Answer on September 14, Yet they did not seek summary judgment based on their argument that the statute had run until August 10, Therefore MSA waited 1,061 days, or 2 years, 10 months, and 27 days before pursuing the defense they had asserted in their Answer. All told, this is over 34 months over four times what the Supreme Court in Horton declared would constitute waiver as a matter of law. 16

21 Like the defendant in Horton who attempted to untimely raise an affirmative defense, this substantial and unreasonable delay has resulted in a waiver of the defense of statute of limitations. 2. MSA Actively Participated in the Litigation Process. Because MSA heavily pursued litigation for over two years, they waived the defense of statute of limitations. The extension of the Waiver Through Inaction rule of Horton to include the affirmative defense of statute of limitations has been upheld several times in the years since Horton was decided, under different circumstances. In Horton, waiver was found when the defendants proceeded to substantially engage the litigation process by consenting to a scheduling order, engaging in written discovery, and conducting [the plaintiff s] deposition. Id. at 180. In its close cousin, East Mississippi State Hospital v. Adams, waiver was found when a defendant participated fully in discovery, filed and opposed various motions, and that participation took place for over two years. 947 So.2d at 891. In a similar case at the state Court of Appeals, waiver was found where a party engaged in written discovery and in settlement negotiations and noticed [the plaintiff s] deposition over a two-year period. Whitten v. Whitten, 956 So.2d 1093, 1099 (Miss. Ct. App. 2007). During its almost three years of delay, MSA actively engaged in the litigation process, most notably through seeking the trial court to compel discovery from Mr. Holmes. This included a request that the Plaintiff answer a mammoth 58 interrogatories and a request for production for a veritable library of 72 different types of documents. This is despite an express prohibition in the Rules of Civil Procedure against such invasive discovery. MRAP 33(a) provides that Interrogatories may be propounded not to exceed thirty in number

22 The questions ranged from the disturbingly personal (such as number 14, asking whether Mr. Holmes had ever used heroin or PCP) to the bureaucratically oppressive (number 28 asks for a signed release of 11 different documents, which were attached, spanning Social Security Records to psychotherapy notes to federal tax records and military records) to the mundane (number 52 asks for information regarding expert testimony). See 14:1989, 1992, The Requests for Production ask for all imaginable data, from information about every place Mr. Holmes had ever worked, including the names of all of the 76 year old s previous coworkers over his entire work history (numbers 9 and 62) to a copy of all state and federal tax returns for the past 10 years (number 44). See 14:1999, 2004, This is an open and obvious engagement in the litigation process by MSA. Over almost three years, the company demanded responses to 58 interrogatories and 72 types of documents. These actions served only one purpose: to obtain discovery from Mr. Holmes so MSA could prepare its case for trial, with the trial the ultimate goal of the litigation process. Based on the line of cases in Mississippi since the decision in Horton, it is clear that that the statute of limitations defense was definitively waived as a matter of law by MSA s active engagement in the litigation process. 3. MSA s Untimely Pursuit of Waived Defenses Resulted in Prejudice. The untimely invocation of the statute of limitations defense has resulted in prejudice to Mr. Holmes. The underlying case was filed in 2002, and 12 years later Mr. Holmes is still pursuing his claims. At the time of trial in 2013, Mr. Holmes was 76, and Dr. Huxford testified that he was nearly at the point where he would be a candidate to have an oxygen tank in his home to help him breathe. MSA s continued delay in this case with an increasingly ill party can only result in greater damage to Mr. Holmes, or even his passing. Such a delay is inherently prejudicial, and so a finding of waiver is proper. 18

23 Because MSA failed to timely raise and pursue the defense of Statute of Limitations while furthering the litigation process of this case, as a matter of law the defense has been waived. B. The Statute of Limitations Did ot Run Because it Was Paused. Because the statute of limitations in this case was paused by Mr. Holmes prior suit, which resulted in a dismissal without prejudice, the trial court was correct in denying summary judgment. It is bedrock law that a lawsuit stops a statute of limitations. As our Supreme Court has repeatedly held, filing a complaint tolls the statute of limitations and permits a plaintiff to refile his or her case if this case is dismissed without prejudice and time remains on the statute of limitations. Knight v. Knight, 85 So.3d 832, 836 (Miss. 2012). There are a multitude of cases establishing the bedrock rule that the filing of a complaint tolls the statute of limitations to preexisting claims. Owens v. Mai, 891 So.2d 220, 223 (Miss. 2005); see also Holmes v. Coast Transit Authority, 815 So.2d 1183, 1185 (Miss. 2002) ( Filing a complaint tolls the applicable statute of limitations for the purpose of service, but if the plaintiff fails to serve process... the statute of limitations automatically begins to run again when that period expires ). The key and most important decision on the subject that directly controls this case is the Court s ruling in the Canadian ational joinder case, which directly impacted this matter and resulted in the dismissal without prejudice of Mr. Holmes initial lawsuit. In that case, the Supreme Court ruled that [t]he statute of limitations is tolled while a misjoined plaintiff s case is pending. Canadian at./illinois Cent. R. Co. v. Smith, 926 So.2d 839, 845 (Miss. 2006) (citing to G. Gaggini, Laches and Limitations, in 5 Ency. of Miss. Law 44:22 (J. Jackson & M. Miller eds. 2008)); see also Deposit Guar. at. Bank v. Roberts, 483 So.2d 348, 352 (Miss. 19

24 1986) ( when the suit to renew was dismissed, the statute commenced to run again ); Marshall v. Kansas City Southern Railways Co., 7 So.3d 210, (Miss. 2009). In other words, in a case like this one, the filing of a lawsuit immediately stops a statute of limitation from running. When and if a lawsuit is dismissed without prejudice to correct a joinder error, the statute begins to run again. As the Supreme Court set out in Canadian ational, This procedure should result in no prejudice to the severed plaintiffs. 926 So. 2d at 845. The procedural history of this case is uncontested. Mr. Holmes was diagnosed with silicosis on December 16, At that point his 3 year statute of limitations to file suit began. Just ten days ticked off the clock until he filed suit as part of a mass action in Adams County on December 26, After Canadian ational, Mr. Holmes original case was dismissed without prejudice indeed, the dismissal order specifically noted he was one of the Plaintiffs to be dismissed pursuant to Canadian ational. The dismissal without prejudice was on April 7, At that point the statute of limitation immediately began to run again. Yet recall that only 10 days of it had run before filing suit, and under the clear language of Canadian ational the statute was on pause during the prior suit. Mr. Holmes re-filed his claims against MSA on May 16, 2007, one year, one month, and 9 days after the Canadian ational dismissal without prejudice. All told, only one year, one month, and 19 days had run on Mr. Holmes statute of limitations to file suit against MSA. 3 The statute had simply not run on his claims under the well-settled law of the Supreme Court. 3 To be extremely precise, the 3 year statute of limitations is composed of 1,095 days. 10 days ticked off the clock between the silicosis diagnosis and the filing of the first suit. After its dismissal without 20

25 One unreported federal case has correctly understood and applied this procedure. Judge Pepper, citing Owens, examined a case where a woman had filed a claim, dismissed it, and then filed another. Gray v. Mariner Health Cent., Inc., 2006 WL , *2, 2006 U.S. Dist. LEXIS (N.D.Miss. Sept. 3, 2006). The defendant nursing home in the case plead that the statute of limitations had run, and filed a motion for summary judgment. Id. The Court acknowledged that the filing of a complaint tolls the statute of limitations, and noted that the clock stopped when a plaintiff filed her first complaint. Id. It resumed ticking when the court dismissed the first action without prejudice, and ran again until the filing of the second suit. Id. As a result of the tolling period, the federal district court denied the motion for summary judgment. Id. The present case is a prime example of a circumstance that will suspend a statute of limitations. Mr. Holmes first suit in Adams County paused the running of the statute of limitations. When it was dismissed without prejudice pursuant to Canadian ational, it began running again. Accordingly, because the case was paused by the prior pending suit under Canadian ational, the statute of limitations did not run. The Court should strictly apply the language of Canadian ational and rule that Mr. Holmes suit was timely filed. prejudice, 404 more days ticked off the clock, for a total of 414 passed days. Therefore Mr. Holmes had a minimum of 681 days remaining when he filed suit on May 16,

26 C. The Cases Cited by MSA Do ot Apply. Because Canadian ational utterly controls this case, and makes clear that the statute of limitations was paused in this case while the first suit was pending, the Court must determine that Mr. Holmes suit was timely filed. The Supreme Court has made completely clear that [t]he statute of limitations is tolled while a misjoined plaintiff s case is pending. Canadian ational, 926 So.2d at 845. MSA utterly ignores this clear and basic language. Instead, it turns to two sources to develop an argument that the statute has somehow run a series of creaky pre-rules cases from 1856 and 1926 and recent jurisprudence on wrongful death cases. See Appellant s Brief, at None of these cases apply. The former are wholly inapplicable in the face of the modern ruling in Canadian ational, which directly impacts this case, controls its outcome, and is why Mr. Holmes prior case was dismissed. Nor does this Court s more nuanced rulings in recent wrongful death cases impact the result here. All three were actions brought by family members of decedents where the Court held that statute of limitations based on derivative claims had run. See Empire Abrasive Equip. Corp. v. Morgan, 87 So. 3d 455, 464 (Miss. 2012); Kinsey v. Pangborn Corp., 78 So. 3d 301, 308 (Miss. 2011); Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 162 (Miss. 2011). Yet in each of those cases, the reason the statute of limitations was breached was because the original party to the original suit had passed away, and later survivors were bringing untimely claims. See Morgan, 87 So.3d at 464. This is because subsequently-filed, wrongful-death actions are separate and distinct from previously filed, personal-injury actions. Id. (in a passage citing to both Clark Sand and Kinsey); see also Clark Sand, 60 So. 3d at 162 ( the survival-type claims included in Kelley's action are time-barred ); Kinsey, 78 So. 3d at 308 (the new and independent wrongful death action was untimely filed). 22

27 Unlike that trio of cases, here Mr. Holmes has not passed away. He is still the original party in interest, and nobody is not claiming a derivative wrongful death or survival-type claim. There is no new party and no new claims. It is the same person with the same claims. Canadian ational utterly controls the result in this case, and as a result the Court must rule that the statute of limitations has not run. II. The Jury s Verdict Was Reasonable and Based on Ample Evidence. Because the verdict by the factfinder in this case was reasonable, and based on ample evidence and testimony from the trial, it must be upheld. Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found. Starcher, 687 So.2d at 739. In this case, MSA seeks to have this Court act as a super-jury, and re-weigh the extensive testimony and documents reviewed by the factfinders of Jefferson County. That is not the role of our appellate courts, as It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Robinson, 51 So.3d at 948. This case is not one of those extreme situations. A. The Jury Heard Ample Proof That Mr. Holmes Was Exposed to Respirable Silica in Deadly Levels. The jury factfinders heard extensive, credible proof that silica harmed Mr. Holmes including important concessions from MSA s own experts. Causation is a question of fact for a jury to determine, and in this case the jury found that the Dustfoe 66 s failure to safeguard Mr. Holmes caused his harm. As a result, the verdict must be upheld. We have repeatedly held that the jury is responsible for judging the credibility of witnesses and the weight that should be attached to their testimony, the Mississippi Supreme 23

28 Court held, in a case involving apportionment in a one-car accident where the driver may have been under the influence. Jackson v. Daley, 739 So.2d 1031, 1039 (Miss. 1999). Indeed, a jury verdict will stand unless the verdict illustrates bias, passion, and prejudice. Id. In this case, the jury was presented a wealth of credible evidence that Mr. Holmes was harmed by silica as a result of using the Dustfoe 66 while jackhammering. Importantly, the facts of this case are completely uncontested. Mr. Holmes testified he used a jackhammer to destroy huge concrete culverts from 1958 to He described the work during those six years as tremendously dusty. He reported not being able to see due to the thick clouds of dust, and spitting up dust and black gunk after working. Mr. Holmes testified that he used the Dustfoe 66 the entirety of this time, and there was not a shred of testimony that he did not use the respirator. At trial, Dr. Huxford testified that this was for sure enough exposure to develop silicosis. The medical expert stressed that each dose of respirable silica increases the risk of the disease, so each second Mr. Holmes was in that dusty environment, it raised his risk of developing silicosis. Dr. Rose also noted that the environment was loaded with toxic respirable silica and that some studies indicated it could have been thirty times over what was safe for a person to endure. Corroborating those two experts was another, Mr. Bevis of Los Alamos National Laboratory, who testified that Mr. Holmes was definitely exposed to respirable silica while jackhammering. Despite MSA s arguments on appeal, at trial their own witnesses agreed that jackhammering concrete could result in toxic levels of silica exposure. MSA s industrial hygienist Donald Marano testified there was silica in the concrete, and that it was a major component of the concrete. When asked if he believed that there was silica in the concrete Mr. Holmes crushed with the jackhammer, MSA s expert testified Certainly it [the concrete] contained silica. MSA s industrial hygienist was also certain that Mr. Holmes had been 24

29 repeatedly dosed with respirable silica over the six year period of jackhammering culverts. In addition, MSA s medical expert, Dr. Demondes Haynes, also testified he believed the six years of exposure Mr. Holmes endured while jackhammering, taken as true, was enough to be at risk for the disease. Therefore the jury did not just hear Mr. Holmes and his witnesses say that jackhammering concrete could release a deadly amount of respirable silica, they also heard Mine Safety Appliances admit to this scenario. Further, there was not one witness who disputed Mr. Holmes testimony that he used a jackhammer, that he destroyed concrete with the jackhammer, and that he breathed in copious amounts of dust for the years he performed that work. Undisputed testimony, which is not so unreasonable as to be unbelievable, must be taken as truth. Reeves Royalty Co., Ltd. v. A B Pump Truck Service, 513 So.2d 595, 599 (Miss. 1987). For in the absence of contradictory evidence, courts are bound to accept the only credible evidence offered in a proceeding and apply the correct law. MSU v. PETA, 992 So.2d 595, 607 (Miss. 2008). This has been the rule in Mississippi for over a century. Juries cannot arbitrarily and capriciously disregard testimony of witnesses, not only unimpeached in any of the usual modes known to the law, but supported by all the circumstances in the case. Mobile, J. & K.C.R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 143 (Miss. 1908). For we must accept the testimony of [a witness] as true, when such a witness is not contradicted either by direct evidence or by circumstances. Stewart v. Coleman & Co., 120 Miss. 28, 81 So. 653, 655 (Miss. 1919). As the Court of Appeals has summarized it, [u]ncontradicted or undisputed evidence should ordinarily be taken as true by the triers of facts. American at. Ins. Co. v. Hogue, 749 So.2d 1254, 1263 (Miss. Ct. App. 2000) (internal quotation and citation omitted). This is simply because evidence which is not contradicted by positive testimony or circumstances, and is not 25